EXHIBIT 10.6.4
▇▇▇▇▇▇▇ COMPANY
FOURTH AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
THIS FOURTH AMENDMENT (this "AMENDMENT") dated as of October 21, 2002
to the CREDIT AND GUARANTY AGREEMENT dated as of October 29, 1998 (as amended by
that certain First Amendment to Credit and Guaranty Agreement dated as of March
1, 1999, that certain Second Amendment to Credit and Guaranty Agreement dated as
of March 22, 2000, and that certain Third Amendment and Waiver to Credit and
Guaranty Agreement dated as of January 5, 2001, the "CREDIT AGREEMENT") is
entered into by and among ▇▇▇▇▇▇▇ COMPANY, a Delaware corporation (the
"COMPANY"), ▇▇▇▇▇▇▇ HOLDINGS, INC., a Delaware corporation ("HOLDINGS"), the
CREDIT SUPPORT PARTIES listed on the signature papers hereto, CERTAIN FINANCIAL
INSTITUTIONS listed on the signature pages hereto, ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS
L.P., as Syndication Agent and UBS AG, STAMFORD BRANCH, as Administrative Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement and in the amendments contained in
Section 1 hereof.
RECITALS
WHEREAS, Company and Requisite Lenders desire to amend the Credit
Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS; INTERPRETATION.
A. Section 1 of the Credit Agreement is hereby amended by adding the
following definitions in proper alphabetical order:
"FOURTH AMENDMENT" means that certain Fourth Amend ment to
Credit and Guaranty Agreement dated as of October 21, 2002 among
Company, Holdings, Syndication Agent, Administrative Agent, and the
financial institutions and the Credit Support Parties listed on the
signature pages thereto.
"FOURTH AMENDMENT EFFECTIVE DATE" means the date of
satisfaction of the conditions referred to in Section 2 of the Fourth
Amendment.
B. Section 1 of the Credit Agreement is hereby further amended by
amending and restating the following definitions in their entirety as follows:
"AGENT" means each of Syndication Agent, Joint Lead
Arrangers and Administrative Agent.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period excluding, however, any
interest expense not payable in Cash (including amortization of
discount and amortization of debt issuance costs), but excluding,
however, any amounts referred to in Section 2.B of the Fourth
Amendment paid on or before the Fourth Amendment Effective Date.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an
amount (if positive) equal to the difference of (I) the sum, without
duplication, of the amounts for such period of (a) Consolidated
Adjusted EBITDA, PLUS (b) the Consolidated Working Capital Adjustment
(excluding any non-cash adjustments to Working Capital Adjustment),
MINUS (ii) the sum, without duplication, of the amounts for such
period of (a) voluntary and scheduled repayments of Consolidated
Total Debt (excluding repayments of Revolving Loans or Swing Line
Loans except to the extent the Revolving Loan Commitments are
permanently reduced in connection with such repayments), PLUS (b)
Consolidated Capital Expenditures (net of any proceeds of any related
financings with respect to such expenditures), PLUS (c) Consolidated
Cash Interest Expense, PLUS (d) the provision for current taxes based
on income of Company and its Subsidiaries and payable in cash with
respect to such period, PLUS (e) Management Fees actually paid in
cash during such period, PLUS (f) the cash portion of any purchase
price payments made during such period by Company or any of its
Subsidiaries in connection with any Permitted Acquisi tion, PLUS (g)
the cash portion of any purchase price payments made during such
period by Company or any of its Subsidiaries in connec tion with the
acquisition of any Intellectual Property, PLUS (h) the cash portion
of any Restricted Junior Payments made during such period pursuant to
Section 6.5(v).
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"MANAGEMENT FEES" means (i) with respect to annual
management fees payable by Company pursuant to the Fenway Agreement,
an amount for any Fiscal Year not to exceed the lesser of (1) the
greater of (x) 0.25% of the annual net sales of Company for the prior
Fiscal Year and (y) 2.5% of the Consolidated Adjusted EBITDA for the
prior Fiscal Year and (2) $3,000,000, PLUS (ii) any other fees
payable by Company in connection with other transactions pursuant to
the Fenway Agreement; PROVIDED, that solely for purposes of
calculations made pursuant to clause (vi) of the definition of
Consolidated Adjusted EBITDA, such other transaction fees shall not
exceed 1.5% of the aggregate transaction value for any such other
transactions.
"NOTICE" means a Funding Notice, a Request for Issuance or a
Conversion/Continuation Notice.
C. Section 1 of the Credit Agreement is hereby further amended by
amending and restating the phrase immediately preceding section (i) in the
definition of "INTEREST PERIOD" in its entirety as follows:
" "INTEREST PERIOD" means, in connection with a Eurodollar Rate Loan,
an interest period of one-, two-, three-, six- or, with respect to
Revolving Loans and Tranche A Term Loans only, twelve- months (in the
case of the latter period, only if acceptable to all Lenders of such
Loans), as selected by Company in the applicable Notice,"
D. To the extent not otherwise amended pursuant to the foregoing
provisions of this Section 1.1, on and after the Fourth Amendment Effective
Date, all references in the Credit Agreement and in any other Credit Document
to "INCREMENTAL TRANCHE C TERM LOAN COMMITMENTS", "INCREMENTAL TRANCHE C TERM
LOANS", "INCREMENTAL TRANCHE C TERM LOAN LENDER","INCREMENTAL TRANCHE C TERM
LOAN NOTICE" and "INCREMENTAL TRANCHE C TERM LOAN SYNDICATION AGENT" shall be
deleted.
1.2 AMENDMENTS TO SECTION 2: CREDIT EXTENSIONS.
A. Section 2.13(e) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"(e) In the event that there shall be Consolidated Excess Cash Flow
for any Fiscal Year, Company shall, no later than ninety (90) days
after the end of such Fiscal Year, prepay the Loans and/or the
Commitments shall be permanently reduced in an aggregate amount equal
to 75% of such Consolidated Excess Cash Flow; PROVIDED, during any
period in which the Leverage Ratio (determined for any such period by
reference to the most recent Compliance Certificate
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delivered pursuant to Section 5.1(d) calculating the Leverage Ratio)
shall be 3.75:1.00 or less, Company shall be required to make the
prepayment and/or reduction required hereby in an amount equal to 50%
of such Consolidated Excess Cash Flow; PROVIDED FURTHER that for
Fiscal Year 2002 only, such prepayment and/or reduction shall be
further reduced by an aggregate amount equal to $9,300,000."
B. Section 2.25 of the Credit Agreement is hereby amended by deleting it
in its entirety and substituting the following therefor:
"2.25 [RESERVED]"
1.3 AMENDMENTS TO SECTION 5: AFFIRMATIVE COVENANTS.
A. Section 5.1(k) of the Credit Agreement is hereby amended by deleting
the reference to "30 days" set forth therein and substituting "45 days"
therefor.
B. Section 5.10 of the Credit Agreement is hereby amended by deleting
it in its entirety and substituting the following therefor:
"5.10. [RESERVED]"
1.4 AMENDMENTS TO SECTION 6: NEGATIVE COVENANTS.
A. Section 6.2 of the Credit Agreement is hereby amended by amending
and restating the last sentence therein in its entirety as follows:
"Except with respect to (i) specific property encumbered to
secure payment of particular Indebtedness, (ii) specific property
to be sold pursuant to an executed agreement with respect to an
Asset Sale, and (iii) the agreement to be entered into with
NetJets Sales, Inc. for the purchase of up to1/8 fractional
interest in a corporate jet by Company, no Credit Party nor any
of its Subsidiaries shall enter into any agreement prohibiting
the creation or assumption of any Lien upon any of its properties
or assets, whether now owned or hereafter acquired."
B. Section 6.3 of the Credit Agreement is hereby amended by deleting
the "and" at the end of clause (viii) thereof deleting the "." at the end of
clause (ix) thereof, and inserting "and" in lieu thereof, and further by
inserting the following clause (x) at the end thereof:
" (x) Notwithstanding the limitations set forth in clause (y) of
Section 6.3(i), Company and its Subsidiaries may make and own
Investments in one Foreign Subsidiary created and operated as a
captive insurance company (the "CAPTIVE INSURANCE SUBSIDIARY") in
an aggregate amount not to exceed $7,500,000 (net of any
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dividends or distributions, or prepayments or payments of
interest by the Captive Insurance Subsidiary to Company or any of
its Subsidiary Guarantors)."
C. Section 6.4 of the Credit Agreement is hereby amended by deleting
the "and" at the end of clause (vi) thereof, adding "add" at the end of clause
(vii) thereof, and inserting the following clause (viii) at the end thereof:
" (viii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations consisting of
guarantees by the Company and its Subsidiaries of Indebtedness,
leases and other Contractual Obligations permitted to be incurred
by the Company or its Subsidiaries."
D. Section 6.5(iii) of the Credit Agreement is hereby amended by
restating clause (a) set forth therein in its entirety as follows:
"(a) in an aggregate amount not to exceed $850,000 in any Fiscal
Year, to the extent necessary to permit Holdings to pay the
ordinary operating expenses of Holdings (including without
limitation, directors' fees, indemnification obligations,
professional fees and expenses);"
E. Section 6.5(v)(b) of the Credit Agreement is hereby amended by
adding the following at the end thereof:
"; except, that such aggregate amount shall not exceed
$6,000,000 only for the 2002 Fiscal Year."
F. Section 6.5 of the Credit Agreement is hereby amended by deleting
the "and" at the end of clause (iv) thereof and inserting the following clauses
(vi) and (vii) at the end thereof:
" (vi) Company may make Restricted Junior Payments in respect of
any repurchase, redemption or repayment of the Senior
Subordinated Notes; PROVIDED, that (x) at the time of such
Restricted Junior Payment and immediately after giving effect
thereto, no Event of Default shall have occurred and be
continuing, (y) the aggregate amount of such Restricted Junior
Payments made pursuant to this clause (vi) shall not exceed
$20,000,000 at any time, and (z) at the time such Restricted
Junior Payment is made, each of the Leverage Ratio and the
Senior Debt Leverage Ratio, respectively, shall not exceed the
correlative ratios indicated below as of the last day of the
Fiscal Quarter immediately preceding such Restricted Junior
Payment as indicated (both before and immediately after giving
effect to such Restricted Junior Payment):
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LEVERAGE RATIO:
========================================================== ==================================
FISCAL QUARTER ENDING MAXIMUM
LEVERAGE RATIO
---------------------------------------------------------- ----------------------------------
September 30, 2002 3.75:1.00
December 31, 2002 3.75:1.00
March 31, 2003 3.75:1.00
June 30, 2003 3.75:1.00
September 30, 2003 3.50:1.00
December 31, 2003 3.50:1.00
March 31, 2004 3.25:1.00
June 30, 2004 3.25:1.00
September 30, 2004 3.00:1.00
---------------------------------------------------------- ----------------------------------
December 31, 2004 3.00:1.00
---------------------------------------------------------- ----------------------------------
March 31, 2005 2.75:1.00
and thereafter
========================================================== ==================================
SENIOR DEBT LEVERAGE RATIO:
FISCAL QUARTER ENDING MAXIMUM SENIOR DEBT
LEVERAGE RATIO
========================================================== ==================================
September 30, 2002 2.00:1.00
December 31, 2002 2.00:1.00
March 31, 2003 2.00:1.00
June 30, 2003 2.00:1.00
September 30, 2003 1.75:1.00
December 31, 2003 1.75:1.00
March 31, 2004 1.50:1.00
June 30, 2004 1.50:1.00
September 30, 2004 1.25:1.00
and thereafter
========================================================== ==================================
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Anything contained herein to the contrary notwithstanding, and
solely for the purposes of calculating the Leverage Ratio and
the Senior Debt Leverage Ratio with respect to the provisions of
this Section 6.5(vi) only, (x) for the period beginning on the
Fourth Amendment Effective Date until the delivery of the
Compliance Certificate for the Fiscal Quarter ended on September
30, 2002, Consolidated Adjusted EBITDA shall be calculated as of
the Fiscal Quarter ending on June 30, 2002, and (y) for any
period beginning thereafter, Consolidated Adjusted EBITDA shall
be calculated as of the last Fiscal Quarter preceding such date
for which a Compliance Certificate has been delivered to the
Administrative Agent and the Lenders; and
(vii) Company may make Restricted Junior Payments to
Holdings to permit Holdings to repurchase, redeem or repay the
Holdings Notes immediately upon receipt of such Restricted
Junior Payments; PROVIDED, that (x) at the time of such
Restricted Junior Payment and immediately after giving effect
thereto, no Event of Default shall have occurred and be
continuing and (y) the aggregate amount of such Restricted
Junior Payments made pursuant to this clause (vii) shall not
exceed the maximum amount permitted under the Senior
Subordinated Note Indenture; "
G. Section 6.6(a) through Section 6.6(d) is hereby amended by
deleting such Sections in their entirety and replacing them with the following:
"(a) MINIMUM FIXED CHARGE COVERAGE RATIO. Company shall
not permit the ratio of (i) Consolidated Adjusted EBITDAR to
(ii) Consolidated Fixed Charges for any four-Fiscal Quarter
period ending as of the last day of each Fiscal Quarter set
forth in the table below to be less than the ratio set forth
beside such quarter in such table:
FISCAL QUARTER ENDING MINIMUM FIXED CHARGE
COVERAGE RATIO
========================================================== ==================================
September 30, 2002 2.10:1.00
December 31, 2002 2.10:1.00
March 31, 2003 2.15:1.00
June 30, 2003 2.15:1.00
September 30, 2003 2.15:1.00
December 31, 2003 2.15:1.00
March 31, 2004 2.25:1.00
June 30, 2004 2.25:1.00
========================================================== ==================================
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Fiscal Quarter Ending Minimum Fixed Charge
========================================================== ==================================
September 30, 2004 2.25:1.00
December 31, 2004 2.25:1.00
March 31, 2005 2.25:1.00
and thereafter
========================================================== ==================================
(b) MINIMUM CASH INTEREST COVERAGE RATIO. Company shall not
permit the ratio of (I) Consolidated Adjusted EBITDA to (II)
Consolidated Cash Interest Expense for any four-Fiscal Quarter period
ending as of the last day of each Fiscal Quarter set forth in the table
below to be less than the ratio set forth beside such quarter in such
table:
MINIMUM CASH INTEREST
FISCAL QUARTER ENDING COVERAGE RATIO
========================================================== ==================================
September 30, 2002 3.00:1.00
December 31, 2002 3.00:1.00
March 31, 2003 3.00:1.00
June 30, 2003 3.00:1.00
September 30, 2003 3.00:1.00
December 31, 2003 3.00:1.00
March 31, 2004 3.00:1.00
June 30, 2004 3.00:1.00
September 30, 2004 3.00:1.00
and thereafter
========================================================== ==================================
(c) MAXIMUM LEVERAGE RATIO. Company shall not permit the
Leverage Ratio as of the last day of each Fiscal Quarter set forth in
the table below to exceed the ratio set forth beside such quarter in
such table:
FISCAL QUARTER ENDING MAXIMUM
LEVERAGE RATIO
========================================================== ==================================
September 30, 2002 4.00:1.00
December 31, 2002 4.00:1.00
March 31, 2003 4.00:1.00
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Fiscal Quarter Ending Maximum
========================================================== ==================================
June 30, 2003 4.00:1.00
September 30, 2003 3.75:1.00
December 31, 2003 3.75:1.00
March 31, 2004 3.50:1.00
June 30, 2004 3.50:1.00
September 30, 2004 3.25:1.00
---------------------------------------------------------- ----------------------------------
December 31, 2004 3.25:1.00
---------------------------------------------------------- ----------------------------------
March 31, 2005 3.00:1.00
and thereafter
========================================================== ==================================
(d) MAXIMUM SENIOR DEBT LEVERAGE RATIO. Company shall not permit
the Senior Debt Leverage Ratio as of the last day of each Fiscal Quarter
set forth in the table below to exceed the ratio set forth beside such
quarter in such table:
FISCAL QUARTER ENDING MAXIMUM SENIOR DEBT
LEVERAGE RATIO
========================================================== ==================================
September 30, 2002 2.25:1.00
December 31, 2002 2.25:1.00
March 31, 2003 2.25:1.00
June 30, 2003 2.25:1.00
September 30, 2003 2.00:1.00
December 31, 2003 2.00:1.00
March 31, 2004 1.75:1.00
June 30, 2004 1.75:1.00
September 30, 2004 1.50:1.00
and thereafter
========================================================== ==================================
H. Section 6.7(iv) of the Credit Agreement is hereby amended by
deleting the reference to "$3,000,000" set forth therein and substituting
"$10,000,000" therefor.
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I. Section 6.7 of the Credit Agreement is hereby amended by deleting the
"and" at the end of clause (vi) thereof, deleting the "." at the end of clause
(vii) thereof, and inserting the phrase "and" in lieu thereof, and further by
inserting the following clause (viii) at the end thereof:
" (viii) Company and its Subsidiaries may make Investments in
accordance with Section 6.3."
J. Section 6.13(c) of the Credit Agreement is hereby amended by amending
and restating the first parenthetical in its entirety as follows:
"(other than the Holdings Notes or Indebtedness issued by Holdings
from time to time which is evidenced by promissory notes or other
contractual obligations in order for Holdings to repurchase its
capital stock, phantom stock or options from deceased, terminated or
retired employees)."
1.5 AMENDMENTS TO SECTION 9: AGENTS.
A. Section 9.8 of the Credit Agreement is hereby amended by adding the
following clause (d) at the end thereof:
" (d) Company and each Guarantor hereby authorize the Administrative
Agent to file any financing statements or continuation statements,
and amendments to financing statements in any jurisdic tions and
with any filing offices as the Administrative may determine, in its
sole discretion, are necessary or advisable to perfect or to
maintain the perfection of the first priority security interest
granted to the Administrative Agent under any of the Credit
Documents. Such financing statements may describe the Collateral in
the same manner as described in the Pledge and Security Agreement or
may contain an indication or description of collateral that
describes such property in any other manner as the Administrative
Agent may determine, in its sole discretion, is necessary, advisable
or prudent to ensure the perfection of the security interest in the
Collateral granted to the Administrative Agent under any of the
Credit Documents, including, without limitation, describing such
property as "all assets" or "all personal property, whether now
owned or hereafter acquired."
_________
1.6 AMENDMENTS TO SECTION 10: AMENDMENTS AND WAIVERS.
A. Section 10.5(d)(vi) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
" (vi) amend, modify, terminate or waive any provision of Section 9
as the same applies to any Agent, or any other provision
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hereof as the same applies to the rights or obligations of any
Agent, without the consent of such Agent."
B. Section 10.6(c) of the Credit Agreement is hereby amended deleting
all references to "$5,000,000" set forth therein and substituting "$1,000,000"
therefor.
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FOURTH
AMENDMENT EFFECTIVE DATE"):
A. EXECUTION. Credit Parties and Requisite Lenders shall have executed
this Amendment.
B. AMENDMENT FEE. The Administrative Agent shall have received, for
distribution to all Lenders executing this Amendment, an amendment fee equal to
0.125% of such Lender's outstanding Loans and Commitments.
C. OTHER FEES. The Agents shall have received all other fees and other
amounts due and payable on or prior to the Fourth Amendment Effective Date,
including, to the extent invoiced, reimbursement or other payment of all
out-of-pocket expenses required to be reimbursed or paid by the Company
hereunder or under any other Credit Document.
D. NECESSARY CONSENTS. Each Credit Party shall have obtained all
material consents necessary or advisable in connection with the transactions
contemplated by this Amendment.
E. OTHER DOCUMENTS. Administrative Agent and Lenders shall have
received such other documents and information regarding Credit Parties as
Administrative Agent may reasonably request.
SECTION 3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, the Company represents and
warrants to each Lender that the following statements are true, correct and
complete in all material respects:
A. CORPORATE POWER AND AUTHORITY. Each Credit Party which is party
hereto has all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its
obligations under, the Credit Agreement as amended by this Amendment (the
"AMENDED AGREEMENT") and the other Credit Documents.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement and the other Credit
Documents have been duly authorized by all necessary corporate action on the
part of each Credit Party.
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C. NO CONFLICT. The execution and delivery by each Credit Party of this
Amendment and the performance by each Credit Party of the Amended Agreement and
the other Credit Documents do not and will not (i) violate (A) any provision of
any law, statute, rule or regulation, or of the certificate or articles of
incorporation or partnership agreement, other constitutive documents or by-laws
of Holdings, the Company or any Subsidiary, (B) any applicable order of any
court or any rule, regulation or order of any Governmental Authority or (C) any
provision of any indenture, certificate of designation for preferred stock,
agreement or other instrument to which Holdings, the Company or any Subsidiary
is a party or by which any of them or any of their property is or may be bound,
(ii) be in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under any such indenture, certificate
of designation for preferred stock, agreement or other instrument, where any
such conflict, violation, breach or default referred to in clause (i) or (ii) of
this Section 3.C., individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of each Credit Party
(other than any Liens created under any of the Credit Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or partners or any approval or consent of any Person under any
contractual obligation of each Credit Party, except for such approvals or
consents which will be obtained on or before the Fourth Amendment Effective
Date.
D. GOVERNMENTAL CONSENTS. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the execution and delivery by each Credit
Party of this Amendment and the performance by Company and Holdings of the
Amended Agreement and the other Credit Documents, except for such actions,
consents and approvals the failure to obtain or make which could not reasonably
be expected to result in a Material Adverse Effect or which have been obtained
and are in full force and effect.
E. BINDING OBLIGATION. This Amendment and the Amended Agreement have
been duly executed and delivered by each of the Credit Parties party thereto and
each constitutes a legal, valid and binding obligation of such Credit Party to
the extent a party thereto enforceable against such Credit Party in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
creditors' rights generally and except as enforceability may be limited by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 4 of the
Amended Agreement are and will be true, correct and complete in all material
respects on and as of the Fourth Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Default.
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SECTION 4. ACKNOWLEDGMENT AND CONSENT
Each of the Credit Parties set forth on the signature pages hereto
are collectively referred to herein as the "CREDIT SUPPORT PARTIES", and the
Credit Documents to which they are a party are collectively referred to herein
as the "CREDIT SUPPORT DOCUMENTS".
Each of the Company and the Credit Support Parties hereby
acknowledges that it has reviewed the terms and provisions of the Credit
Agreement and this Amendment and consents to the amendment of the Credit
Agreement effected pursuant to this Amendment. Each of the Company and the
Credit Support Parties hereby confirms that each Credit Support Document to
which it is a party or otherwise bound and all Collateral encumbered thereby
will continue to guarantee or secure, as the case may be, to the fullest extent
possible in accordance with the Credit Support Documents the payment and
performance of all "Obligations" under each of the Credit Support Documents to
which is a party (in each case as such terms are defined in the applicable
Credit Support Document).
Each of the Company and the Credit Support Parties acknowledges and
agrees that any of the Credit Support Documents to which it is a party or
otherwise bound shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired
or limited by the execution or effectiveness of this Amendment. Each of the
Company and the Credit Support Parties represents and warrants that all
representations and warranties contained in the Amended Agreement and the Credit
Support Documents to which it is a party or otherwise bound are true, correct
and complete in all material respects on and as of the Fourth Amendment
Effective Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
Each of the Company and the Credit Support Parties acknowledges and
agrees that (i) notwithstanding the conditions to effectiveness set forth in
this Amendment, each such Credit Support Party is not required by the terms of
the Credit Agreement or any other Credit Support Document to consent to the
amendments to the Credit Agreement effected pursuant to this Amendment and (ii)
nothing in the Credit Agreement, this Amendment or any other Credit Support
Document shall be deemed to require the consent of any of the Company and each
such Credit Support Party to any future amendments to the Credit Agreement.
SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the Fourth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Credit Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended by this Amendment.
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(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Credit Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of any Agent or Lender under, the Credit Agreement or any of
the other Credit Documents.
B. HEADINGS. Section and Subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGA TIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
E. AMENDMENT AND RESTATEMENT. To facilitate reference to the provisions
of the Credit Agreement, as amended by this Amendment, each Lender executing
this Amendment hereby authorizes Administrative Agent, on its behalf, to enter
into an amendment and restatement of the Credit Agreement, as amended by this
Amendment; PROVIDED that any such amendment and restatement shall be distributed
to each Lender.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER: ▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President & CFO
HOLDINGS: ▇▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President & CFO
CREDIT SUPPORT
PARTIES: ▇▇▇▇▇▇▇ INTERNATIONAL HOLDINGS
COMPANY, INC.
(for purposes of Section 4 only) as a
Credit Support Party
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President & CFO
THE ▇▇▇▇▇▇▇ MANUFACTURING CO., LLC
(for purposes of Section 4 only) as a Credit
Support Party
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President & CFO
S - 1
WORLD OF SLEEP OUTLETS, LLC,
(for purposes of Section 4 only) as a Credit
Support Party
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President & CFO
▇▇▇▇▇▇▇ CONTRACT SALES, LLC,
(for purposes of Section 4 only) as a Credit
Support Party
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President & CFO
GALLERY CORP.,
(for purposes of Section 4 only) as a Credit
Support Party
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President & CFO
DREAMWELL, LTD.,
(for purposes of Section 4 only) as a Credit
Support Party
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇ CAPITAL MANAGEMENT, LLC,
(for purposes of Section 4 only) as a Credit
Support Party
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
S - 2
LENDERS AND AGENTS ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Authorized Signatory
S - 3
UBS AG, STAMFORD BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Associate Director
Banking Products Services, US
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate Director
Banking Products Services, US
S-4
▇▇▇▇▇▇▇▇▇▇▇ SENIOR FLOATING RATE FUND
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Manager
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
S-6
SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-7
NEW ALLIANCEGLOBAL CDO, LIMITED
By: Alliance Capital Management L.P., as
Sub-advisor
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
S-8
RIVIERA FUNDING LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Asst. Vice President
S-9
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. Rio
--------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. Rio
Title: Vice President
S-10
INDOSUEZ CAPITAL FUNDING IV, L.P.,
By: RBC Leveraged Capital as Portfolio
Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
▇-▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇ ▇▇▇▇), INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
S-12
PB CAPITAL
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
S-13
ELT LTD.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Agent
S-14
HSBC BANK USA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
S-15
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio
Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal
INDOSUEZ CAPITAL FUNDING VI, LIMITED
By: Indosuez Capital as Collateral
Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal
S-16
KZH CYPRESSTREE-1 LLC
By: /s/ ▇▇▇▇▇ ▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
S-17
TEXTRON FINANCIAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Operations
S-18
KZH STERLING LLC
By: /s/ ▇▇▇▇▇ ▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
S-19
BLACK DIAMOND CLO 2000-1 LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director
S-20
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
S-21
CENTURION CDO II, LTD.
By: American Express Asset Management
Group Inc. as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
S-22
NOMURA BOND & LOAN FUND
By: UFJ Trust Company of New York as
Trustee
By: Nomura Corporate Research and Asset
Management Inc. Attorney in Fact
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-23
SCOTIABANC INC.
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
Title: Director
S-24
CLYDESDALE CLO 2001-1, LTD.
By: Nomura Corporate Research and Asset
Management Inc. as Collateral
Manager
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-25
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
S-26
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as Investment
Advisor
By: /s/ ▇▇▇▇▇ ▇. Page
--------------------------
Name: ▇▇▇▇▇ ▇. Page
Title: Vice President
S-27
▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL SENIOR LOAN
FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as Investment
Advisor
By: /s/ ▇▇▇▇▇ ▇. Page
--------------------------
Name: ▇▇▇▇▇ ▇. Page
Title: Vice President
S-28
